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tv   U.S. Senate  CSPAN  May 19, 2011 9:00am-12:00pm EDT

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society has developed a legitimate or recognizes a legitimate or feasible expectation. and i think they look to whatever indicators that they can in the practices, in the case of the text messaging i was describing. .. tonight there >> thank you for being here for your outstanding record of public service and academic preparation and your family is
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going to stand by you through this long process and i am grateful for the chance to have visited with you in person and reviewed your writings and your work and spend time with you today. i think you would be a very capable jurist. there are a lot of questions about your -- how that would influence your work should ubs circuit court judge. one article in particular, title rethinking constitutional welfare rights is the subject of some controversy and in that, you're right fundamental rights can evolve over time. can you lay out what role the judiciary has in recognizing the evolution of fundamental rights overtime? >> that article was in two parts. the first half is devoted to rejecting the ideas that could
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have any role in investing rights in the social and economic realm and that is consistent with the instructions of the supreme court in this area where in case after case the court said the constitution in the charter of-liberties and not positive liberties. i will faithfully and fully apply those precedents where i confirmed in this process. that half of the article recognizes limited judicial role in interpreting rights created by statute so the crucial difference much of the article is directed at the notion that policymakers are really the ones in charge when it comes to this contested area. what courts do is on limited vacation, dray ss the legislature's -- procedures againstthey ss the
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legislature's -- procedures against the dictates of equal protection and those remaining on the books. a role i play is consistent with the state of the law as it is today. and prepared to fully follow that law. >> can you point to anything in your scholarship to suggest this is consistently been your view that the role of the judiciary and recognizing this is fairly limited and subservient to policymaking? >> in many ways, senator coons, my scholarship has been devoted to education. public education. in another article in 2006 i wrote again another piece that was about education but directed again at the legislature of the policymakers with the important caveat that i am not
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contemplating any judicial role here. in fact i acknowledge the supreme court's decision in 1973 in the rodriguez case that was very much in forward by principles of judicial restraint was the basic approach that i was taking in that article recognizing courts have very limited capacity, in some instances no capacity or authority to weigh in on political decisions and so much of my riding has been centered on those -- >> one last question about something else that has been a subject of some debate. what role does foreign law play in judicial application of domestic u.s. law? what sort of authority of any kind? >> the answer is none. foreign law has no authority in our system unless the american law requires that in the case of
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a contract or treaty of some sort. to clarify that issue, there is one paragraph of writing in my record that acknowledges that solutions for legal problems might come from other places in the world when they are common problems that a constitutional democracy faces. all i meant by that was in the same way judges look to treatises and law you articles and other sources for ideas about how to approach matters that come before them they might look to examples from other nations too but there is a crucial distinction between that kind of information gathering and the use of those sources. no one would cite a law review article as legal authority to control certain proposition of law and the same exact rule applies to any reform law that a
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judge may look at. >> thank you very much. senator coburn? >> at the recommendation of the chairman would like you to come to my office and had a sit-down, i promise the chairman of would do that when your nomination was discussed. earlier today you said in your testimony there are areas of the constitution that are very precise. i have a question for article iii section ii judicial power shall extend in all areas recognizing the constitution and trees made of which will be made under their authority. is that the precise view? because the idea of precisely this is an important definition. >> article iii section ii contains an absolute requirement that judges decide only cases or
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controversies which did not render advisory's. that is fairly explicit in the text of the constitution. >> the reason i ask that question is the chairman quoted you in terms of your statement absolute fidelity of the law. your statement that caused difficulty is the following, resistance to this practice in terms of reference in foreign law is difficult for me to grasp. these are your words. since the united states can hardly claim to have a monopoly on large -- common legal problems faced by democracies around the world. if you have an absolute fidelity to the law of the language in the statute prepared to how could anyone consider foreign law as the basis for a decision sitting on the supreme court for an appellate court? >> the supreme court in this area has largely followed the general approach they looked to
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foreign law as confirmatory or ideas about how to approach the problem. i don't read that as dictating those sources have authority in the sense of legal controlling and binding authority in interpretation of u.s. law. that is not my view that foreign law has that authority. >> a specific example, just this stevens in mcdonnell versus chicago, our oldest allies found inappropriate to regulate firearms ostensibly so we can petition or submission those choosing this fundamental to the life of liberty. do you believe there is merit to his argument? he is now referencing foreign law in defense of his position on that case. it is that fidelity to the language law and statutes.
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is this precise? >> as i recall justice stevens -- were i confirmed as the judge i would follow the majority view. >> but again we have a supreme court justice who is relying on foreign law. it is clear to the senators that -- to want to know exactly where you are given the statement that you said it is difficult for you to grasp that people would have trouble with the utilization of foreign law. >> even in a justice stevens's dissent there is no sense in which the examples he gave and i don't have any view because i can't recall clearly of the merits of how he used his examples. my point simply is i don't think even in his opinion that he is citing those forces of the legal questions that came before him and as i said, that opinion was a dissent and if i were confirmed by would follow not
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only the holding of the supreme court in mcdonnell versus the city of chicago but follow the reasoning of the case and their reasoning -- >> i submit two rounds of questions following our other hearing. on many you failed to give me an answer and i am going to run out of time to be able to do that so i look forward to meeting with you in my office to try to get to those answers. the other question i want to go back to is your statement about justice alito. you said today that you -- knowing what you know today and experience you have seen today that you would not have included the last paragraph in your critique. is that a case of poor judgment, do you think? or just a case of lack of knowledge and insight? >> it was poor judgment.
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>> i have seven seconds left and a multitude of questions so i will try to accomplish that with the nominee in my office. >> thank you for meeting with him. it is very much appreciated. senator blumenthal? >> thank you, madam chairman. at thank you, professor liu and most particularly to your family for being here today. a want to command you for this -- really a great american success story going to public school in sacramento and stanford, oxford on road scholarship and many years of teaching and for answering the questions today, difficult questions so candidly and forthrightly, most especially your expression of regret for comments you made about then
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nominee justice alito. i want to say about this process that i think you are entitled to an up or down vote by the united states senate. i also feel that this scrutiny has been a fair, searching and demanding but i believe this body has a responsibility to ask the kind of questions you have been asked and i hope that you will agree the process is a fair one in that regard and i want to go to what i consider these central question for any judge on the united states court of appeals which is where you would follow and particularly what you would follow if your personal views, whether you're past writings or present deeply held beliefs conflict with the rulings and decisions of the
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united states supreme court. is there any doubt in your mind that you would follow faithfully and consistently the rulings and decisions of the united states supreme court? >> no doubt in my mind about that. in fact, the approach that i have taken in my writings has been fairly consistently to acknowledge what the state of law actually is and scholars are paid to critique it and to say other things about it but it always begins with a clear acknowledgment of what the law is. that is what i would follow. >> so for example on the question of school choice and busing, you have taken stands that would indicate your support for broadbased school choice initiative under some circumstances and we may disagree about it, i am not sure we do but even if we did, there
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is no question in your mind even as a supporter for example of school choice initiative is, school vouchers that you would follow the rulings of the united states supreme court. >> absolutely at would. >> to follow an excellent line of questioning from senator lee, if the united states supreme court run clear and he may have used the word incoherent which is what legislators regard the supreme court on certain issues, what would be your approach? would you look to what the combination of precedents from the united states supreme court is and make sense of it and apply what you thought? >> that is what one would have to do in the role of an appellate judge. >> i know that one of the criticisms i have seen reviewing your previous testimony has
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related to racial quotas. the statement made is you support racial quotas with no foreseeable end point. do you support racial quotas and have you ever supported them? >> i absolutely do not. >> you think affirmative action plans should exist forever? >> no. i think affirmative action as it was originally conceived was a time limited remedy for past wrongs and i think that is the appropriate way to understand what affirmative action is. >> thank you very much. i may have some additional questions. i am impressed by your testimony. >> senator sessions? >> we don't have time to go into the kind of discussions we would all like to.
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of lee difficult for us to get prepared as we would like. used to a pretty good job all in all. you have gone through this and written answered questions before. you have had no real experience practicing law or as a judge. only two years in private practice arguing one incase on appeal, a pro bono case but having never tried a case before a jury please give you apparently are and able professor, well-liked and advanced in the academic world. i do believe a serious lack at least in any judge who goes on a court one step below the supreme court. that to me is a serious matter. no need to argue about or talk about it but something i have to weigh in my judgment as to whether or not you should be on the court.
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secondly from your writings, i have been on this committee for 14 years, i consider them to be the most advanced statement of the activist judicial philosophy that i have seen. i don't think there's anyone close to that. i think it is a little bit a demonstration of some lack of sensitivity or maybe the practical legal experience that you have no difficulty in talking to round rather direct contradictions in your ridings and positions you are taking here in the committee on some of the questions. they are very clear distinctions and i don't think they are easily breached. with regard to the foreign law question you suggest yours is not an unusual view. i would suggest it is clearly
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from the statements, clearly in the court of the most aggressive foreign law citations theories and i think are unacceptable. in your jerreyale law journal ae of 2006, quote, before the fourteenth amendment guarantees protection it guarantees national citizenship. this is affirmatively declared, not protected against state abridgment and the guarantee does more than designee legal status together with section v obligates the national government to secure the full membership, participation, equal dignity of all citizens in the national community. this obligation i argue encompasses a legislative unit to ensure all children have adequate educational
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opportunities for equal citizenship for familiar reasons, the constitutional guarantee of a national citizenship has never realized its potential to be a generative source of substantive rights. that is what it said. the words are pretty plain. you have become a citizen of the united states. but generative force of substantive rights, a judge can begin to evaluate political, social policies that you discuss in your article and begin to make decisions on those. you are talking about substantive rights found in the document itself that judges can
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act upon. i ask you to respond to that. don't you think that is un tethering a judge from the restraints of the constitution? >> i will try to address this in four points. first, the article says absolutely nothing about what a judge should do. it addresses the policymakers. there's not a single sentence in that article that says judges should use that language as a generative source. secondly, the article -- >> who would find within that document a source of substantive rights? legislatures don't need to use the citizenship clause to pass a welfare bill. >> my argument in the article is merely that the legislature and
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members of congress may -- >> constitutional provision provides potential source of substantive rights and that is clearly directed to the courts. >> that is not my view. the article in the very beginning explained clearly that i avoid using the language of rights precisely because rights connote judicial enforceability which is something i'm not interested in in that article. if i may make a couple more points, it is hard for me to respond, you mentioned there are contradictions between that my testimony of there are specific instances i would be happy to clarify that but it is hard to respond to that in the abstract. >> i have to vote -- we go through this and i have to evaluate what i am hearing and a would suggest to you that there
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are a number of contradictions in your written statements and your testimony and written answers to the committee's questions that i don't think are adequately -- adequately address the differences. >> it is hard for me to respond without knowing what contradictions you have in mind. the last point i will make his in terms of the gap in my experience, i acknowledge you are correct. it is true my resume is primarily a scholarly reason. i have been in practice and the tutelage of people like bill coleman which i hope the credit to me. but it is limited. i'd do think i bring other strength to the role of an appellate judge. role of a scholar has always been one of rigorous inquiry and consideration, fair consideration of argument and counter argument and the ability to listen well to all the different sides of an issue and in terms of how i would approach
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the role, knowing i have gaps in my experience, i take some instruction from my own experience having clerked for an appellate judge who is not on district court before and one thing he always did was read the record of the case very carefully. the temptation at the appellate level because the issues are cleaned up is just to decide on abstract matters of law but instruction always was to look at the record, get the record, it is important to understand how a case came up the line to the appeals process. i would adopt the same approach if i were fortunate enough to be confirmed. >> in that same article you said it was directed only to
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policymakers using this language. you said in your words that the article was an attempt, a small step toward reformation of thoughts on how welfare rights might be recognized through constitutional adjudication. >> i am sorry for interrupting. there are two articles in question. when you are reading is from a 2008 stanford law article that you reference previously, the one that contained the phrase legislative duty, was from the 2006 law journal article and in that there is no reference to a judicial role. >> it is because you say potential source to generate substantive thoughts and that can only mean by a judge because the legislature cannot act on these matters without having to have the citizenship clause of the constitution to authorize
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it. i am at the limit of my time. thank you. >> note the generosity of the chairman. >> you are very generous. and i would say your most able advocate for the judges from california that you believe in and always respect your insight. >> senator cornyn. >> thank you. thank you, madam chairman. let me go back to it as the professor liu people to the statement referred to earlier which were statement of your commentary about judge alito. to read those for the record it helps people understand what you said and why there is concern about it. you said, quote, judge alito's issue where police may shoot and kill an unarmed boy to stop him from running away with a stolen
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purse. aware federal agents may decagon that ordinary citizens during a raid even after no sign of resistance, where the fbi may install a camera where you sleep on the promise that it won't turn it on. unless an informant is in the room. wear a black man may be sentenced to death by an all white jury for killing a white man absent multiple analysis showing discrimination and where police may search where work permits and then some. this is not the america we know, nor is this the america we aspire to be. did i read that correctly? >> you did.
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>> professor liu, this is the second time you had a nomination hearing before this committee. last time was april 6, 2010. >> i can't remember the exact date but it wasn't april. >> you know why your nomination was never called up on the floor of the senate? >> i have read various press accounts but i have no direct knowledge. >> you are aware the only person who could do that would be majority leader senator reid? >> i am aware of that. >> did you have a conversation with him or his staff about why he did not call your nomination of and have a vote of the united states senate on your nomination before the end of the last conference? -- congress? >> not on that subject. >> it is a mystery to you as to why you are having to go through this twice and never had an opportunity for a vote on your
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previous nomination? >> i would perhaps say a mystery. i read some press accounts of how vote decisions were determined that the end of the session. as i learned through this process i can't always trust press accounts but i have some ideas about it. >> you were denied a vote on your nomination last congress, correct? >> i was. >> the only one who could have scheduled that would be majority leader senator reid legal correct? >> i believe that is true. >> in talking about chief justice john roberts's nomination to the supreme court you said, quote, there's no doubt that roberts has a legal mind, in brilliant legal mind but a supreme court nominee must be evaluated on more than legal intellect. is that a correct quote? >> that is a correct quote. >> you agree that should apply to you?
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>> absolutely. the advise and consent process is in the constitution because it is one of the checks and balances of our system. before any judge sits on the bench or life tenure there ought to be a political check on that process so i do agree with that. >> the difficulty you are encountering with some members of the committee is you have such a comprehensive set of legal writings expressing opinions on everything from the death penalty to same-sex marriage to what constitutes welfare rights affected by the u.s. constitution, is that you are now saying that wipe the slate clean because none of that has any relevance whatsoever to how i would conduct myself as a judge if confirmed by the senate. is that correct? >> that is correct. my understanding of the role of
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an intermediate appellate judge is a hierarchy of the judicial system, to faithfully follow the instructions of the higher court which in this case is the united states supreme court as well as circuit precedent and so i am very comfortable and confident that my scholarly views are not the ground on which i would based decisions if i were lucky enough to be confirmed. it is a different case. you mention what i wrote about the roberts nomination, different case with respect to the united states supreme court because the justices are applying the doctrine started in may if they apply the test in that way overturn president and that simply is not something that an intermediate appellate judge has any authority to do. ..
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>> about whether this is, whether you have a sort of temperament and the ability to set aside your strongly held academic and scholarly views, and to be able to basically start over from scratch. and ignore them. the problem we have asked members of this committee is that we have five minute rounds to ask you questions. we follow it up with written questions, and you have answered most of those, i believe. the difficulty is, we know this
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kabuki theater sometimes where nominees come in to the hearing room, and they profess a nomination conversion. in other words, if there previously strongly held and very particularly stated views are an operative, and we should not pay any attention to them and we should take actual word your ability, maybe it is your hope, maybe it is her aspiration, but we need to know whether you have the ability and you actually will come if confirmed as a judge, do as you say you would do and set all of this aside, and decide strickland unprecedented and fidelity to the constitution itself. we've had the sad experience just in the short term i've been in the senate where people come in and they say the sorts of things that you are saying today about how they would conduct themselves as the judge. but in practice they have either been unable or unwilling to keep that promise. and the senate has no recourse
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whatsoever, short of impeachment, which as you know is extraordinarily rare. so i just want to explain to you, i think we owe you in fairness our candid views, my candid views. as i said, i think you accomplished a lot in your life. you have a lot to be grateful for and proud of, but i'm not convinced that this is the right job for you. so, but with that, madam chair, i will -- >> thank you very much. before recognizing senator klobuchar, i'd like to place in the record the statement of our chairman, pat leahy. and he, too, refers, senator, to the confirmation of professor mcconnell. i'd like to just quote one thing. professor mcconnell's own provocative writings, included
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staunch advocacy for re-examining the first amendment free exercise clause, the establishment clause, jurisprudence, he expressed strong opposition to roe v. wade and to the clinic access while. he testified before congress that he believed that the violence against women act was unconstitutional. his writings on the actions of federal district court judge john sprizzo in equity and abortion protesters could not be read as anything other than praise for the legal behavior of both defendants and the judge. and he was confirmed, and members on this site gave him the benefit of the doubt. >> madam chairman, i appreciate that and i don't dispute anything you said, and i do believe judge mcconnell did what he promised to do. my only point is there is no recourse for the committee or for the senate in voting to confirm a nominee who doesn't do what they promised to do. and so, that's the quandary we find ourselves in the.
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>> well, i don't want to go have a back and forth, but professor liu can promise but he can't do now. he can only, once he gets appointed, then you measure that. there is no way -- he said he would. >> and again, thank you for allowing me to just briefly respond. we've had the experience in the case of the supreme court justice who came in, in the case of the second amendment, the right to keep and bear arms, said it was an individual right. and then subsequently wrote a decision on the court and disavowed the very individual right that she claimed that existed under the second amendment. that's my only point. i'm not disputing that professor liu they have those aspirations. he may be making a good-faith representations about his intentions. i'm just saying that you can't
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ignore a height of legal scholarship, expressing strongly held views about this, and just take for granted that someone will be able to completely ignore that and approaching their job as a judge. that's my only point. thank you. >> i will continue this discussion with you sometime -- [laughter] senator klobuchar. >> welcome back. >> thank you. >> i think this is your secondary come is that right? >> it is. >> iron emir talking to them and i was listening at senator cornyn spoke about a five minute respite i think also when you that two drinks now and she made herself available to members for whatever questions they have, to meet with him in office, is that right? >> that is true. >> i appreciate you making yourself so available to talk with them about any questions that they have, about your ability to do this job, and i
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stated before you think the lindsey graham standard that i think you are more than qualified to do this job based on your background and standard that he expressed during the kagan and sotomayor hearings, about someone's qualities and academic qualifications and their understanding of the law and their willingness to follow the law. i just wanted to go back into what you said with senator cornyn was just talking about, which is the difference that your work as a scholar, and i think i mentioned before that i'm a graduate of the university of chicago law school, and have seen judge easterbrook and judge posner as professors and have often thought of some the things that they said in class or views that they expressed in scholarly journals were not necessarily what guided them as a judge when it actually had to apply the law. and could you talk a little bit again about your view of a judge differing from the role of an advocate or scholar? >> certainly. thank you, senator klobuchar. i first want to just express
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that i appreciate senator cornyn's making transparent and playing his concerns about my nomination, and i think they are, they are very concerned to raise and to discuss. i think this is a robust and fair process. and it enabled me an opportunity i think to clarify that in all of my academic writings, the role that i had was that of a commentator, as it were. what a scholar does, a scholar pokes and prods and critiques. a scholar doesn't make much headway in the law schools by simply restating the law. and so that's why scholarship comes out the way it does. it comes out as critical and comes out as innovative and provocative. exactly the very qualities that are rewarded in that profession. the role of the judge is very, very different to the role of a judge is fundamentally one of
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being faithful to the law as it is. and i think i have recognized that difference in the way that i approach scholarship, which is to say that i understand what the law is first, without grasping that essential foundation. one can't responsibly comment upon it, right? and so, if i'm able to take one hand often put this different hat on, the role simply changes. and the nature of how you approach cases changes. it's not that judge easterbrook or judge poser, any judge has been an academic consults their own legal writings and refreshes the recollection about what they thought as a matter of theory before deciding a case. what they do is they read the briefs and they read the record of the case and they confined themselves. they disciplined themselves to that process because that is the process of judging. and so that is how i understand that difference and that's how i
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would approach the job. >> and i also know that a lot of comments about writings and taking things you have said to try to demonstrate what people think might be your judicial philosophy. do you want to describe in your own words without just taking one sentence out of something you wrote, what your judicial philosophy is? >> sure. my judicial philosophy in a nutshell i think is about the course of the united states have a very limited role in our system of government. it's limited because the members of the judiciary hold life tenure without electoral accountability, and they are asked to review the substantive validity of democratically enacted statute on vacation. and so that is because we're on fundamentally democratic system, that's able to exercise very cautiously and in a very restrained way. it's also, however, a very important role because the judiciary as hamilton told us
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long ago and is also an important bulwark against the tyranny of the majority. and so, we have protections in the constitution perverse individual rights and we entrust judiciary to enforce it precisely because they are insulated from the politics of the moment. and so it's a careful balancing act at all times, but in approaching the cases that would come before me, i would take my construction from the united states supreme court and all of those cases, and i think the court has in the main across the broad run of cases balanced those two important prerogativ prerogatives. one, the limitation of the judiciary, and secondly, the important bulwark against tyranny that judiciary serves in our system of government's. >> think you. madam chair, if i could ask one question. i have been managing the american events act as you know so i missed the first round you. i wondered what you see in my new job here i'm going to be heading up the courts subcommittee and senator
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sessions is the ranking republican the digestion of what you see as the greatest challenges facing the federal judiciary right now? >> i feel like it would be presumptuous of me to even comment on the question having not made it to the job yet. you know -- >> about trying really hard though. you must have some thoughts on. >> senator klobuchar, i don't have more thoughts on this and any layperson might have. i mean, i paid attention to this process because of my own involvement in it, and, obviously, i have observed many claims made about the crushing caseload that have affected not just the ninth circuit but many of the circuits around the country. and so, you know, that is a test i think the importance of this process is from the challenges that you will face in the years to come. >> thank you very much. and again, i just think about myself as a student in law
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school with professor easterbrook, professor posner, and so they get through this committee and they got to this senate which had very ideological -- many differences at that time as well, and i hope at the same will happen with you, professor liu. you have great credentials. thank you. >> thank you, senator,. >> that completes our first round, and i would like to put some letters into the record, which i will do. and i had to stand at senator sessions has some questions he wishes -- this is actually your third round. well, senator grassley -- well -- [inaudible] >> he has to come back or i am going to move on. so do you have a second -- why don't you go ahead and? [inaudible] >> again, i'm a bit baffled. you talk to just a moment ago about on judges showing
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restraint, that they are cautious, that we have a limited role. but im properly quoted this article a while ago and you corrected me, rightly. but this is article on rethinking constitutional welfare. you talk about judges, and this is your writing about how you think judges should perform. quote, the historical development and binding character of our constitutional understanding demand a more complex explanation to take a conventional account of the courts as an independent, socially detached decision-makers that say what the law is. the enduring task of the judiciary, you say, is to find a way to articulate constitutional law that the nation can accept as its own, closed quote.
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well, first, under the marbury v. madison decision was -- had the famous line that a judge's role is to say what the law is. but you go quite a bit further from the, and then in your writings and then when asked aboutit, you give a statement that justice scalia could give about the role of a judge. doesn't this go far beyond what you just said? >> senator, i think that's a first time i've been accused of channeling justice scalia so i will take that as -- >> that was a pretty good statement. but it's not consistent. i think with what you wrote. >> senator, i don't recall -- i would be happy to look at the passage more carefully if you would like. >> i didn't misquote it i think. >> i think you quoted accurately.
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i think the passage if i recall it correctly was trying to say that judges cannot decide cases, whether it's in this area, welfare rights, or any other area, on the basis of some independent moral theory that they have about what people are entitled to. if anything. and so, that statement is part of an argument i think in the article that says that what judges have to do is they have to set aside their independent moral theories, and not import them into the law. i think the supreme court has been absolutely clear in this particular area, the welfare rights area, that there is that danger that judges unelected and unaccountable based on their own conceptions of justice might try to write that into the law. and iphoto respect those precedents in that article. >> you mentioned a while ago pretty easily, i thought, that on the question of privacy you said that, well, privacy is what
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society says it is, basically. and how do you define that? you look at what sources you can. but when you get away from the respecting the limitation of the constitution and its language, then you get into binding theories out here. do you do polling data to determine what rights are, or do we look to foreign law as justice stevens said? you said you look to foreign law to get what advice they get, but it is our constitution that you're interpreting. and what we adopted, not some foreign law. can you -- so doesn't that indicate to me, and do all of us, your view is that a judge indeed is free to reinterpret the meaning of the words of the constitution, to advance what they consider to be in effect some societal value.
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which is an ascertainable really by a judge in any fair and complete way. >> well, senator, on the fourth amendment example i was not asked to getting my personal view about the subject, i was trying to express what the supreme court itself has said about the subject. and if i were an intermediate appellate judge, i would have to faithfully follow the standard of reasonable expectation of privacy or legitimate expectation of privacy as society recognizes it, which is the applicable standard in the black letter of the law. >> well, i think you and i appreciate the opportunity to have this exchange and able alloy with a noble mind and ability to articulate your position well. i would just say that i believe the values you expressed in your writings indicate that you have
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a very active you of the role of a judge. i think it would influence your decision-making. i'm not unaware of the ninth circuit is considered be the most liberal circuit in the country. one year they refer were reversed 27 out of 20 cases, and "the new york times" wrote that the ninth circuit was considered by a majority of the court as a rogue circuit. so i am concerned about that, and, but i have no doubt of your goodwill. your skill, your leadership, your ability, your academic ability, and you have a wonderful family. >> thank you, senator. >> senator grassley has returned, and i know he has additional questions. senator blumenthal, you have additional questions for this witness? >> i did not, madam chairman. i would yield to senator grassley. >> fine. and i know we are keeping the other nominees quite a time, but we will try to be quick in your
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hearings. i think you've probably seen that this is a very interesting hearing for this particular candidate. >> madam chair, i would offer for the record -- [inaudible] or fester painters letter that -- professor painters letter, he responds exactly to this criticism. >> that was quick. it will go into the record. senator, would you like to -- say, wipe the slate clean as to your academic ratings and career, what is left to justify your confirmation? >> senator, i would hope that you wouldn't wipe my slate clean, as it were. i am what i am. my resume is a scholarly resume.
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and all i can say about that is that i appreciate the distinction between the roles. i think there are important facets of being a scholar that are very beneficial to being a judge. the village of a broad knowledge of the law, the ability to see arguments and counter arguments, and to be fair to the arguments. and also the ability frankly to listen well to the litigants positions and to subject all of the arguments to the most rigorous scrutiny. i think all those are transferable skills from one to the other. what is not transferable absolutely are the substitute of use that one might take as a matter of legal theory. those are left at the door, and then when one becomes a judge one applies the laws to the facts of every case. >> you devote an entire chapter in your book to defending the supreme court holdings in cases like roe and griswold and lawrence. you describe these cases collectively as quote, rod
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constellations of cases extending constitutional protection to individual decision-making on intimate questions of family life, sexuality and reproduction, end of quote. you argue and i quote further, the rights affirmed in the cases from griswold, lawrence, enjoy widespread support and acceptance that cannot be reconciled within air textualism, or an originalism that how the framing generation would have resolved the precise issues. but they are wholly consistent with that approach to constitutional interpretation with original commitment in contemporary social contexts together. the evolution of constitutional protection for individual autonomy in certain areas of intimate decision-making reflect precisely the rich forum of
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constitutional interpretation that this book and the come and go. so question, isn't that you argue these cases, quote reflect precisely the rich form of constitutional interpretation in this book envisions, is it fair to say that these cases demonstrate fidelity to the constitution under your judicial philosophy? >> well, senator, those are cases that have been rendered by the united states supreme court. they are precedents of the court, and if i were confirmed as a judge i would be fully following them. i don't think that in the writing any -- it is a scholarly -- what you read is a scholarly description, one scholarly description of a set of cases, and i'm sure there are scholars who would disagree. but what all scholars would not disagree on, i think him is that however we might like to characterize those opinions is a matter of three which is what that is. the decision speak for
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themselves in their own language. and any judge would have to consult not my book or any other person's book, but those decisions themselves and applying the law to the facts of any particular case. >> your prior hearing he responded to a question from senator cornyn by saying lord as a case in which the supreme court relied simple because it was fatal to the majority opinions decision. in doing so, did the court quote, read original commitments and the content for a social context together, end quote? >> senator, i'm not, i'm not sure, and i'm not sure i understand the question. >> well, i can state it again, but pretty simple to me good we are trying to compare what you said about original commitments and contemporary social context, the extent to which the lawrence
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decision and your reliance upon foreign long was favorable to the opinions, how that fits in with what your quote that i gave. >> well, senator, in lawrence the supreme court was interpreting the term liberty in the due process law of the 14th amendment. and in interpreting that term, the court did look to a variety of sources, but most especially a look to the precedents of the court itself, the primary discussion as i remember it in the opinion is a discussion of how the notion of liberty had traveled through a variety of the courts on presidents from the time of the early i believe 1900s all the way up to the present day. with respect to the citation of foreign law, i think i have said in our previous hearing that there are reasons to be skeptical as well about the use
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of foreign law because one has to know whether or not one is cherry-picking in a sense among the possible sources. and perhaps that was the caution that i expressed the first time we had this conversation about that case. >> this'll be my last question. we've had a a host of liberal academics and meeting that the was largely invented out of whole cloth. professor tribe is written quote one of the most recent things of our role is that behind is verbal smokescreen, the substitute judgment on which it rests is nowhere to be found, end of quote. in 1985 justice ginsburg described roe as quote heavy-handed judicial intervention that was difficult to justify and appears to have provoked, not resolve, conflict in the code. yale law professor kermit roosevelt who wrote a book
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entitled "the myth of judicial activism" said, quote, as constitutional argument, roe is barely coherent. the court told it's a fundamental right to choose more or less from the constitutional ether. end of quote. edward lazarus, a former law clerk to justice blackmun wrote quote as a matter of constitutional interpretation is the most liberal jurisprudence, if you administer truth serum, will tell you it is basically indefensible there and you know, we could go on and on, but my question to you is this, do you still believe that roe and its progeny demonstrate what you termed constitutional fidelity? >> senator, it has been reaffirmed as recently as i believe 1992 and the casey opinion by the court, as the president of the court is and how to respect of the precedents of the supreme court aren't have
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to. in the case of the intermediate appellate judge, if i were fortunate enough to be confirmed, that means that roe is a compelling case under the caselaw so i would have to apply it safely if i were confirmed. >> and so you're saying it demonstrates what you have turned constitutional fidelity? >> senator, the supreme court has said it is an appropriate decision under the united states constitution as an intermediate appellate judge, i'm obligated to respect that. >> thank you, professor liu. want to thank you. i want to thank you for your bright mind. i want to thank you for your scholastic intuition and judgment and knowledge. i thought the answer to senator grassley's last question show that you also have courage of that. fine, if you get there, they find out court judge. and i think this is really hard
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because you see the polarization that exists. whether we can overcome it or not i don't know. i hope members will meet with you separately. to do so. that means a great deal to me. just want to spell it out, has been that our federal judiciary is made up of the best we can get. giants of our time. if you're able to make it, one thing i am sure of, you will not dumb it down. so thank you very much for being here, and you are not excused. >> thank you, senator feinstein. >> thanks for joining us on this thursday, may 19. we're going now live to capitol hill as the u.s. senate is about to gavel in. today the senate considers the nomination of goodwin lived to be be judge on the ninth circuit
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court of appeals. there'll be a test vote at 2 p.m. east and. on the floor the nominee will meet with centers including senate majority leader harry reid. now to live coverage of the u.s. senate here on c-span2. senate will come to order. today's opening prayer will be offered by dr. robert schomp, pastor of bethany christian church in tulsa, oklahoma. the chaplain: let us pray. god of many names
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and faiths, we praise you for the freedom of religious expression which allows us to worship you in the temples, and churches of our nation. to you belong all realms, all power and all glory. yet in this nation of immigrants, the united states of america, you have given us the freedom to establish our own government in order to defend and oversee the rights and welfare of our citizens. today, we pray for this august body, the united states senate, whom we the people have chosen to share in the leadership of our country. we pray for your assistance for these privileged women and men. bless them with the stamina, the toughness and the integrity to fight for what is right and honorable in your sight. instill in them the desire for unity within diversity, the will to overcome racism and bigotry, the courage to break down dividing walls of hostility, the
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ability to hear and respect the voices of those who disagree with them, and the determination to work with each other for justice, freedom and peace. amen. the presiding officer: please join me in reciting the pledge of allegiance to the flag. i pledge allegiance to the flag of the united states of america, and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all. the presiding officer: the clerk will read a communication to the senate. the clerk: washington, d.c., may 19, 2011. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable tom udall, a senator from the state of new mexico, to perform the duties of the chair.
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signed: daniel k. inouye, president pro tempore. mr. reid: mr. president? the presiding officer: the majority leader is recognized. mr. reid: i see our esteemed chaplain in the chamber. we appreciate very much his everyday prayer and the prayer this morning of the guest chaplain, which was very -- a very nice prayer. very, very thoughtful and outlines what our country is all about. we appreciate that very, very much. following leader remarks, the senate will be in morning business until 11:00 a.m., with the majority controlling the first half, the republicans controlling the final half. at 11:00 a.m., the senate will be in executive session to consider the nomination of goodwin liu to be united states circuit judge for the ninth circuit with the time until 2:00 p.m. equally divided and controlled. at about 2:00 p.m., there will be a roll call vote on the nomination to invoke cloture on the liu nomination. mr. president, s. 1022 is at the desk and it's due for a second
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reading. the presiding officer: the clerk will report. the clerk: s. 1022, a bill to extend expiring provisions of the u.s.a. patriot i am improvement and authorization act of 2005 and so forth and for other purposes. mr. reid: mr. president, i would object to any further proceedings with respect to this bill. the presiding officer: objection is heard. the bill will be placed on the calendar. mr. reid: would the chair announce morning business, please? the presiding officer: under the previous order, the leadership time is reserved. under the previous order, the senate will be in a period of morning business until 11:00 a.m., with senators permitted to speak therein for up to ten minutes each, with the time equally divided and controlled between the two leaders or their designees, with the majority controlling the first half and the republicans controlling the final. mr. reid: i would note the absence of a quorum. the presiding officer: the clerk will call the roll.
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quorum call:
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quorum call:
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the presiding officer: the senator from alabama is recognized. mr. sessions: i would ask unanimous consent that the quorum call be dispensed with. the presiding officer: without objection. mr. sessions: mr. president, i'd ask consent that senator hatch and i be able to speak as in a colloquy. the presiding officer: without objection. mr. sessions: mr. president, the congressional budget act, an actual law of the united states, requires that congress pass a budget by april 15. pass a budget by april 15.
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the republican house has passed its budget. they stated to the nation their financial vision for the future. the democratic senate, however, has not passed a budget in 750 days. 750 days since we've had a budget that passed the united states senate. this year, they haven't even brought a budget forward to committee to begin to mark up a budget, as specifically required by the same statute. they have not even put forward a plan. democrats control the senate. they have campaigned for the majority, and as my wife says to me, when i complain, you ask for the job. so we have the largest economy on earth, and we are in the middle of a fiscal crisis for the majority party to skip work
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on the nation's budget is not something to be taken lightly. so i would ask my good friend, the senator from utah, the ranking republican on the finance committee, my former chairman in the judiciary committee, if the american people were polled, senator hatch, how many do you think would say the senate shouldn't pass a budget? mr. hatch: that's a good question. my friend from alabama, the distinguished ranking member of the senate budget committee, really has asked a fundamental question. the answer to me and i think everybody else is clear as a bell. the american people overwhelmingly expect the senate to do the people's business. the first order of business is to get our fiscal house in order. the house of representatives has taken the first step. folks in utah have dealt with their family budgets, their business budgets and their government budgets. they rightly ask that the senate do exactly the same thing. mr. sessions: well, one reason it is so important to have an
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honest, open budget process is that the budgets are so easy to manipulate and spin. the president in proposing a budget some time ago said his budget called on america to live within its means and -- quote - "not add more to the debt." that was the president's own statement. while, in fact, his budget doubled the debt of the united states in ten years, producing annual, annual deficits each year, the lowest deficit of which never once fell below below $748 billion. in fact, that would average almost $1 trillion a year and no year close to balancing. the congressional budget office found when they analyzed the president's plan -- which is required by law to be submitted -- they found so many gimmicks that it contained
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another $2.3 trillion in deficits. in other words, it increased the deficits. the president delivered a speech promising $4 trillion in savings over 12 years. so after his budget was ill received by objective commentators all over the country, editorial boards and in congress, he made a speech, and he promised $4 trillion in savings over 12 years, but the committee, the c.b.o. and -- well, the committee analyst on -- analysts on our staff reveal that this so-called framework actually worsened the budget in relation to the c.b.o. base line. so does the senator from utah believe the white house and democrat-led senate should produce an honest, concrete, fact-based budget that we can rely on? mr. hatch: well, i sure do. they actually -- they actually worsen the deficit $2.2 trillion
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in relation to the c.b.o. base line. until you see the numbers in black and white, a bunch of us just talk. democrats and republicans have an obligation to produce their fiscal blueprints in an intellectually honest, complete and transparent fashion. as the majority senate democrats have the privilege and responsibility to take the first step, republicans have a responsibility to convey our fiscal blueprint through debate and amendments. that's -- that's the way it's traditionally really always been done. and as the distinguished ranking member has indicated, our side is ready to engage in this important debate and process, but it's hard to do it when they won't even put up a budget. and they haven't put up a budget in the last couple of years. without a budget, we don't have anything to debate and analyze. mr. sessions: senator hatch, just for the people who might not understand, you have been chairman and ranking member on
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a -- on important committees. it is the chairman's responsibility to even call a hearing and to begin a markup, and the minority is not able to call the committee into effect, so we do have to look for the chairman. probably the chairman would operate in relation to the majority leader to call the committee into session, is that right? mr. hatch: well, there is no question about it. the chairman has the responsibility of holding the hearings that lead up to a budget resolution, structuring the budget resolution in accordance with -- with his party's beliefs, it seems to me, and then bringing it up in committee where both sides can argue about it, both sides have their right to amend, both sides have their right to improve it, and then bring it out of committee and bring it to the floor, but they -- they don't do that. then they wonder why we're in
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such fiscal difficulties. i know the distinguished senator from alabama understands this fully, as the ranking member on the budget committee, having also been chairman of the judiciary committee. and frankly, i'm really concerned about it because -- and i think everybody's concerned about it because they don't seem to ever want to come up with a budget, and there may be some reasons behind that that aren't valid. mr. sessions: well, i -- i would agree. a budget is fundamentally a plan, your vision for the financial future of america, and it's rather astounding that the party that's in the majority is not even prepared to state to the american people the direction -- mr. hatch: if the senator would yield? there is nothing more important in all of our lives right now than coming up with a budget that hopefully will show us on a downward trend as far as spending goes. we're now spending somewhere around 69% of the g.d.p. our national debt at at $14.3 trillion is 90% of the
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g.d.p. now, according to the president's own actuaries, we're headed toward 90% of the g.d.p. of spending. we get -- this country is going to have difficulties that are going to be very difficult to overcome, and that's where we're headed. especially if we don't even have a budget we can debate on the floor of the senate. mr. sessions: i couldn't agree more. in fact, when the president submitted his budget, mr. erskine bowles, whom the president had asked and did, in fact, chair the fiscal commission, is supposed to come up with a plan to help us get out of this fix. mr. bowles said about the president's budget, it's nowhere close to what is necessary to avoid our fiscal nightmare. that's what the president's own person said, so now we are looking at congress, that's the president's proposal, but the senate has got to move a proposal. we can't even go to conference to begin to work out a budget that both houses could agree on until the senate moves a budget
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forward. mr. hatch: that's right. i think the distinguished chairman of the budget committee, senator conrad, wants to do it, but in their caucus, they can't get together because they all want to spend more, they all want to tax more. they want to keep spending and taxing the way they have in the past, and it's clear that we can't keep doing that. mr. sessions: i would agree. as a matter of fact, we have heard reports that the democratic caucus is debating a budget in closed-door caucus meetings, have done that at least twice, and this is now six weeks after the committee deadline to bring forward a budget has passed. these reports indicate that in order to oblige the senate's leading progressive, the senator from vermont, senator conrad, has moved his budget further to the left, i think, than he probably desired. so we're told this budget now has more taxes than savings, raising taxes $2 trillion,
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possibly even $2.7 trillion -- we'll have to see it to know. all we're hearing is news reports at this point -- while cutting just $1.5 trillion in spending over ten years. even the president in his april speech called for $3 in spending cuts for every $1 in tax increases, although our analysis of his speech shows he did not do that, but that's what he says is the right approach. as the ranking republican on the finance committee, what are your thoughts, senator hatch, about how steep tax hikes would affect the economy? would it be better to cut wasteful washington spending or to raise taxes to continue the spending spree we have been on? mr. hatch: well, that's a good question. i tell my friend from alabama, it amazes me how much our friends on the other side are hard wired to have more tax increases. as the ranking member knows, if
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current tax policy is left in place, including today's low rates, family tax relief and the alternative minimum tax patch, the congressional budget office tells us revenues will trend to the historic average of 18% of g.d.p. the president's move -- the president's moves, he moves revenues up to record highs as a percentage of g.d.p. last year, it was like 25.3%. the last time we had that was really in 1945 at the end of the second world war, at the height of the second world war, finishing a war. now, the tax increase that's contemplated by the president's budget will mean half of small business flow-through income will be hit with a marginal tax rate of 17% to 24% on top of their regular tax rate. democrats and republicans agree that the small business sector is the key to job creation. 70% of the jobs are created by these small businesses.
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the top marginal rate on capital gains income will rise to 59% in a little over 18 months under the president's budget. and that will drive down after-tax rates of return on investments. now, is that tax policy a path to recovery? i don't think so and i don't think anybody else who looks at it with any degree of intelligence thinks so. and that's another reason why we need to engage in the budget process in the committee, and i just have to say i'm very appreciative of my friend from alabama, his leadership on that committee, and you will have to lead our side, but it's hard to lead when you don't have anything to lead on. mr. sessions: well, it will be hard to have a discussion if a budget is not brought up and we can have a debate about it. i just had occasion to meet with the finance minister from canada, senator hatch, and he told me that they are bringing their corporate tax rate down to
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15% or below. we're at 35.9%, is that right, i think? and we have the highest corporate tax rate in america. we'd like to -- wouldn't it be nice if we could just tax them more and get some more money, but as you know from your experience, if you have two higher tax -- too high of tax rates, it drives investment out of america, drives jobs out of america. companies are liable to want to move to canada where they pay less taxes, creating jobs for them and not for us. so there is a danger, is there not, economically and a danger to growth which we need so desperately if we just keep raising taxes. mr. hatch: well, our corporate tax rate is 35%. that's the highest in the world other than japan. and -- and it's really causing a lot of corporations to leave our country. in the 1970's, 39 of the top 50 multinational corporations in the world were based here in the
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united states. today, only 16 -- or at least that was the last figure i had. it's really low. and the reason is because we're -- we're taxing them to death and we have a lot of other screwy tax aspects that really don't work. we could solve all these problems if we just get a decent budget here, all work to bring spending under control, and get us on a downward trend with regard to spending. and i've got to say we can't do it without budget debates, budget bills. but our friends on the other side don't seem to be able to get their caucus together to be able to allow the chairman to come up with a budget that -- on time, in a way that will help us debate this matter and hopefully resolve it here on the floor. mr. sessions: well, i think you're right, senator hatch, and our colleagues, really good friends on the other side -- some very -- this senate is filled with remarkable people, but i think they are paralyzed,
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frankly, by the challenge of putting a plan on paper that could actually be examined, the numbers calculated, and ideas confronted. i think that their problem is they are not able to produce a budget that their caucus will support, that the american people will support and that would actually get the job done. that's a difficult challenge, but if you want to be a leader, you have to meet that challenge. mr. hatch: well, my friend from alabama, as he always does, has arrived precisely at the critical point. we need a fiscal policy that is balanced, its remedies must respond to the causes of our current fiscal calamity. in the most recent fiscal year, spending, as i said, hit over 25% of g.d.p. now, that figure is easily over the 20% that our historical
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average has allowed. i mean, it's unbelievable that we're spending that much. spending is fueling the deficits that we're facing. the president's budget reaches into the american people's pocketbook with taxes trending at or near historic highs in an apeople i can -- in an anemic effort to close the gap. the other side of the ledger really isn't dented. it remains far above any historical average. nobody can refute that. these are facts. i'm concerned about it, i'll tell you that. mr. sessions: well, the democratic leaders and the president has talked a lot about a balanced approach to reducing our deficit. we believe in that. you've indicated that, but i'd ask you what is the more balanced approach, a plan that hikes taxes and grows the government or a plan that
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controls washington spending and shifts the balance back to every day americans. mr. hatch: the ranking member, my friend from alabama, sinked it up perfectly. it comes down to balance. our friends on the other side cannot agree among themselves at this time. and the reason they cannot agree is that most of them are looking to the revenue side of the ledger to resolve what really is a spending problem. the finance committee has jurisdiction over 50% of federal spending and that will trend to 60% shortly. it has jurisdiction over nearly all revenues and as a member of the finance committee and a ranking member, i fail to see how a tax-increase driven budget can be implemented in the finance committee on a bipartisan basis. and i am keenly interested on how the budget committee will come down on the biggest policy question of our time. i'm pleased to have the advice and counsel of my friend from
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alabama as that process moves forward. i'd like to have the advice and counsel of the distinguished budget chairman, but he can't get his side to do what really is reasonable and that is bring down spending. and that's what we have to do. we're just not -- we're just spending us into oblivion and that's the problem. mr. sessions: this is true and it is a dangerous thing to our country. we have gone 750 days without passing a budget in the senate. i do believe that if you took a poll of the american people what percentage would one get if they were asked, should the congress of the united states, particularly at a time of great financial danger, should they have a budget? and we won't have a budget unless the senate acts. so it's a question both of philosophy and economics, philosophically the american people do not want washington to
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hike taxes on millions of americans in order to fund this wasteful spending spree. economically the evidence shows cutting spending, not raising taxes, and we've done a number of studies on this, is the approach that consistently produces the best results time and time again. we need a budget based on facts. we need a budget that grows the economy, not the government. we need a budget that imposes real spending discipline on washington. we need a budget without gimmicks or empty promises. we need a budget that is produced publicly and openly allowing the american people full opportunity to see what's in it and to consider it. we need a budget that the american people deserve, an honest budget that spares our children from both the growing burden of debt, the growing burden of big government. we need a budget that ensures america will compete creating
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jobs and lead and thrive in the 21st century. mr. hatch: i thank my colleague. he summed it up pretty well is all i can say. we need for our children and grandchildren and great grandchildren, we need to get this done. and, frankly, it ought to be done in the budget committee and not by rule 14 here on the floor. the reason it should be done in the budget committee is that i know the minority will weigh in and at least have their viewpoints expressed and there will be amendments and people can vote up or down on whatever it is. then they bring it to the floor and they should have a complete consideration of it here as well. and that's the way it ought to be done. i have to say it's very difficult, as a former member of the budget committee, i have to admit that it's difficult -- it's a difficult process. but it isn't difficult if we all work together to get spending under control and quit taxing
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the american people to death. we can do this if we just work together. i hate to say it, but i think our friends on the other side just aren't working together themselves in their own caucus and the distinguished senator from alabama's pointed that out, i think courteously here today, and i hope that they will get together even though i'm pretty sure they're going to come up with a budget that will continue to spend and tax like we've had in the past. i hope they don't. if they don't, i think they -- the american people would breathe a sigh of relief and say they've done a good job. if they do, it will be more of the time. mr. sessions: thank you, senator hatch. i've enjoyed sharing these thoughts and would just note again that we're looking at a congress at a period in history in which our systemic debt problem is greater, i believe, than any time in our history. not -- world war ii was serious, you know, but we could see our
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way out of it as soon as that war was over and we bounced back rapidly. every expert tells us that it won't be easy for us to bounce back out of the systemic problems we have and we need to have leadership and so to have gone this long, 750 days without a budget in the senate. last year we didn't pass a budget and there were 59 democrats in the senate. they say, well, you know, don't be so partisan, senator sessions. and, you know, we're talking, calling their names here this morning, and we like our colleagues, but the truth is when you have the majority, you have a responsibility. and the responsibility at this point in history could not be greater than to produce a blueprint, a plan for the future like the house has done that -- that the american people can see, does that solve our
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problems? does it put us on right path? i think the house bill does. we have yet to see anything out of the senate that does. it's our responsibility in this body to pass legislation because if we don't, it can't conference with the house so we can never get a budget passed. so, thank you, senator hatch. and i look forward to working with our colleagues and maybe we can somehow break this logjam, but the american people have a right to watch us and not be happy when we're not doing the kind of work necessary to put this country on a sound financial path. mr. president, i note the be a -- i yield the floor and i would -- i would yield the floor. mr. hatch: mr. president? the presiding officer: the senator from utah's recognized. mr. hatch: is it time to move to the goodwin lou nomination? -- liu nomination?
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the presiding officer: not until 11:00. mr. hatch: i would like to move to that so i can give my opening remarks.
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mr. hatch: i withdraw the
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consent request and suggest the absence of a quorum. the presiding officer: without objection. the clerk will call the roll. quorum call:
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mr. hatch: mr. president? the presiding officer: the senator from utah is recognized. mr. hatch: i ask unanimous consent that the quorum call be dispensed with. the presiding officer: without objection. mr. hatch: i also ask unanimous consent that my remarks be as in a debate about goodwin liu and that the time be counted against our side. the presiding officer: is there object why? without objection, so ordered -- is there objection? without objection, so ordered. mr. hatch: mr. president, i rise in strong opposition to the nomination of goodwin liu. as he said at the first hearing before the judiciary committee, his record is public and he has written what he has written. he has said what he has said. that record is what we have to -- what we have to go on. the basis on which we have to make a decision about his nomination to the federal bench
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or his confirmation here on the floor. professor liu's record endorses a powerful judiciary that can take control of the law in general and of the constitution in particular. his activist judicial philosophy is fundamentally at odds with the principles on which our system of government is based. i examine a judicial nominee's entire record to determine if he is qualified by legal experience and even more importantly by judicial philosophy. as to professor liu's legal experience, i know that the a.b.a. has unanimously rated him well qualified. that is -- that is more than a little baffling since the a.b.a.'s own criteria state the nomination have at least 12 years of actual law in practice and substantial trial experience as a lawyer or trial judge. so it's a little bit more than baffling. as somebody who's watched the a.b.a., all 35 years i've been
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in the senate, professor liu has nonof that. none of the -- none of that. none of the actual trial experience as a lawyer. none. suffice it to say understanding the mystery of the a.b.a.'s nominations has eluded me for many years. sometimes they do a great job, a lot of times they don't. the more qualifications for judicial service is the understapbg of the proper role of judges in our government. professor liu has been writing and speaking directly about how judges should go about judging. he has written and spoken extensively about how judges should interpret and apply the law, especially the constitution, to decide cases. the debate about judicial philosophy really comes down to this. we can all read what the
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constitution says. the real question is what the constitution means. where the meaning of its words properly may be found. the debate is about who gets the final say on what the constitution means, the people or the judges. america's founders clearly took the people's side in this debate. in his farewell address in 1796 president george washington said the very basis of our political system is that the people control the constitution. he said that until the people change the constitution, it is sacredly obligatory upon all. that certainly includes in fact that -- in fact that primarily includes government because it was the constitution that exists to do, to both empower and to limit government. the constitution cannot limit government if it cannot limit judges. and it cannot limit judges if they control what the
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constitution means in accordance with their own praoed lick tions and values. the constitution belongs to people, not to judges. president obama takes the opposite view. when he was a senator and opposed the nomination of chief justice john roberts, one of the great political -- not political, but one of the greatest appellate lawyers in the history of the country, he said that judges decide cases based on their deepest values and core concerns. their perspective of how the world works, their empathy and what is in their heart. that is what then-senator obama said. as a presidential candidate, he made the same case to the planned parenthood action fund and said that these were the criteria by which he would pick judges. president obama has certainly kept that campaign promise in the person of professor goodwin liu. professor liu has written that judges are literally on a search for new constitutional meaning.
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in article after article, in speech after speech, he argues that judges on this quest for new constitutional meaning may find it in such things as the concerns, conditions, and evolving norms of society, social movements and practices and shifting cultural understanding. no matter how you cut it, these are simply alternative ways of saying that the constitution means whatever judges say it means. this is a blueprint for a judiciary that controls the constitution. professor liu's approach treats the constitution as if it were written in some kind of code or disappearing ink and treats judges as the only ones who have the key to figuring it out. professor liu, of course, is hardly the only one to make this argument. it is pretty standard fare for those who want our constitution to stand and to mean something other than what it does. when these folks want government to have power that the real constitution denies, they urge judges to change the constitution's meaning to be
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what they want. and when these folks do not want government to have power that the real constitution allows, they urge judges to make up so-called rights that are not there at all, whether seeking liberal or conservative political results, this is real judicial activism. judges taking control of our law by taking control of its meaning. judges are making the constitution in their own image. in my 35 years of actively participating in the judicial confirmation process, i don't recall someone who more forcefully and directly advocated such an activist judiciary. in a 2008 article published in the stan in order law review, for example, professor liu argued that the judiciary is -- quote -- "a culturally anticipated meaning." that would be a surprise to america's founders who had a much more pedestrian view of the judiciary which alexander hamilton described as the weakest and least dangerous
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branch. thomas jefferson warned that if judges could control the constitution's meaning, it would be nothing but a lump of wax that judges could exist and shape -- to twist and shape into any form they pleased. there is no room in this modest judicial rule for something as grand as interpreting social meaning. now, i grant that there are individuals or institutions in our society who should play this role. i think that elected representatives, elected representative bodies like the one in which i am proud to serve should play this role, and so does the constitution. but the last body of people in our society who should play this role of culturally interpreting social meaning are judges in whose hands is placed the interpretation and application of the supreme law of the land. i for one did not take an oath to support and defend a judge's empathy or perspective on how the world works, whether that
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judge is liberal or conservative or something in between. i did not take an oath to support a judge's view of evolving social norms or shifting cultural understandings. i took an oath to support and defend the constitution of the united states, a document that belongs, in its words, in its meaning, to the people of the united states. the constitution i've sworn to support and defend places limits on government, including limits on the judiciary and the people alone have authority to change those limits. professor liu advocated an activist judiciary before he had been nominated to the judiciary. but when he came before the judiciary committee in each twaof hearings, he -- each of two hearings, he painted a different picture. he wrote in the sanford law review that judges must determine -- quote -- "whether collective values on a given issue can be absorbed into legal
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doctrine. after his nomination he told the judiciary committee there is no room for judges to invents or create new theories. is it anybody's guess what all of that collective value, convergence and credible crystallization really means. but if that stuff is not a new theory, i don't know what it is. before his nomination, professor liu wrote directly and forcefully about where judges should look for the meaning of the constitution. he made a career of it. he received awards for it and became one of the stars of the left-wing legal universe. after his nomination, when i raised some of his controversial writings at his first hearing, professor liu told me that -- quote -- "whatever i may have written in the books and in the articles would have no bearing on my role as a judge." unquote. and then at the end of that same hearing last year, professor liu told one of my committee colleagues that -- quote -- "as you look across my entire record, there are many things, i
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think, relevant to the kind of judge i would be." unquotes. well, which is it? before he wants to be a judge, he argues that judges can find new meaning for the constitution and changing cultural understanding and evolving social norms. after he wants to become a judge, he tells critics to ignore that record but tells supporters to consider that record. this has been about the most stunning confirmation conversion i've seen in my time in the senate. i'm really concerned about this nomination. i don't personally dislike this man. he's a, i'm sure very articulate and provocative law professor. law professors tend to be that way. i remember judge bork who was savaged here by the other side in the united states senate; one of the greatest political and economic thinkers, but most importantly judicial thinkers i've ever known. and he was savaged for remarks
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that were not any less or not any more than goodwin liu. in closing, the fight over judicial nominees is really a fight -- is really a fight over judicial power. judges must either take the law as they find it, as the people in their elected representatives make it or judges may make the law into whatever they want it to be. those are the two choices. our liberty requires that people to whom the constitution belongs alone have authority to change it. our liberty requires judges who will be controlled by that constitution. president obama and professor liu instead advocate a judiciary able to control the constitution, to change the constitution, to literally create from scratch a new
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constitution, or at least new provisions of the constitution. that will destroy our liberty. when i look at professor liu's record, i see that he consistently and strongly advocates an approach that allows judges to find the meaning of the constitution virtually anywhere they want to look. that is the opposite of the defined limited role that judges properly have in our system of government. i cannot support someone for appointment to the federal bench, especially to one that is already the most activist circuit in the country, who believes that judges should have that much power. having said that, mr. president, the ninth circuit court of appeals is the most activist court in the whole country. it is a court that ignores the law consistently, or at least some of the judges on that court. judge reinhart, who is a brilliant man by any measure, apparently doesn't even care what the words of the constitution say. he's going to interpret things
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the way he believes, which is pretty contrary to what the constitution actually says and pretty contrary to the laws that we who were elected to make the laws have put in writing. he's just one. there's a whole raft of them there. judge reinhart gets reversed almost every time he writes an opinion by the supreme court of the united states. the problem is -- people say that is taken care of by the supreme court. yeah, it is in those streud decisions but -- individual decisions, but in each circuit courts of appeals there are thousands of opinions written that will never be considered by the supreme court because the supreme court only considers between 80 and 100 cases a year. they're important and who we put on them is important too. and we don't need any more judicial activists either from the right or left interpreting
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the constitution in accordance with their own predilections rather than what the constitution actually says. and in goodwin liu, he has a long history of really outrageous comments, at least to us conservatives. and i think really to good-thinking liberals who want the courts to be what they should be, interpreters of the law, not makers of the law. they're not elected for anything, and they're appointed for life on the basis that they, that they will do what's right and that they will uphold the law regardless of whether they agree with it or not. they certainly can write in their opinions why they disagree with the law, but they've got to uphold the law unless they're -- unless law is absolutely unconstitutional. and i've got to say that the folks on our side who have listened to goodwin liu, we know
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that what he stands for and what he has taught in schools, what he has written in books and law review articles is really contrary to what judges should do. and i don't care that the american bar association has given him such a sterling qualification, something they would not do for any republican appointee; i have to tell you. i've never seen it before, that somebody has zero experience in court and really zero experience in the law other than as a professor. that's an honorable, top position. to do what they did, it's astound to go me. and i think a -- it's astounding to me and i think a discredit to the american bar association, which should be down the line honest. in this particular case, has been anything but. this is an important -- this is an important issue. i wish i didn't have to vote against goodwin liu, because i
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like him personally. i like provocative law professors, even when they disagree with me. in fact, sometimes especially because they disagree with me. but they darned well better be intelligent disagreements. i like that. but i worry about some of these far-left law professors who are teaching our kids how to become lawyers and teaching them the wrong things. it's okay if they teach them the wrong things, but also teach the right things and contrast the two. i don't have any problem with that. i do have problems with law professors who basically ignore the actual words in the law, and especially when they ignore the words in the constitution or distort those words in the constitution, which i found goodwin liu has done from time to time and which i believe disqualify him for this very, very high honor of being on a
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court which, like other circuit court of appeals, happen to be very, very important. and the next court immediately under the supreme court of america. with that, i suggest the absence of a quorum and ask that the time be divided equally. the presiding officer: without objection, so ordered. the clerk will call the roll. quorum call:
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mrs. boxer: mr. president? the presiding officer: the senator from california is recognized. mrs. boxer: in any event, i ask that the quorum call be dispensed with. the presiding officer: without objection, so ordered.
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the presiding officer: morning business is closed. under the previous order the senate will resume to executive session to resume to the nomination. the clerk: nomination, the judiciary, goodwin liu to be united states circuit judge for the ninth circuit. mrs. boxer: mr. president? the presiding officer: under the previous order the time until 2:00 p.m. will be equally divided and controlled between the two leaders or their designees. mrs. boxer: mr. president, i am very honored to speak in favor of the goodwin liu nomination and to urge my colleagues on both sides of the aisle to cast a proud vote for an extraordinary person, a remarkable young man who, for want of a better word, is a star at everything that he has done. this is a picture of goodwin.
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to say that goodwin person nice the dream of america is an understatement. to say that this is a -- a good nomination understates the way i feel about it. i thank the president for moving forward with goodwin on two occasions, the nomination twice -- was it three times? three times. the judiciary committee for reporting him out on more than one occasion and, of course, to senators, leahy, reid, and feinstein for their hard work to getting us to this point. it's rather stunning for me to hear conservative republicans come down here and blast goodwin. because goodwin liu, professor liu, has support from some of the most conservative legal minds in the country and i want to share with you what ken starr -- kenneth starr who we
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all know, the special counsel on the whitewater matter considered at that time quite partisan, one of the -- one of the conservative, i think -- i want to say stars of their thought. he said, "in our view" -- and he writes this with professor amar and this was published. "in our view the traits that should weigh most heavily in the evaluation of an extraordinary qualified nominee such as goodwin are professional integrity and the ability to discharge faithfully an abiding duty to follow the law. because goodwin possesses those qualities to the highest degree, we are confident that he will serve on the court of appeals not only fairly and competently, but with great distinction. we support and urge his speedy
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confirmation." this is kenneth starr. so i say to my republican conservative friends, before you come here and start attacking goodwin liu for things he has never done, read what some of our conservative leaders in the legal profession are saying. today, just today, in "politico" there's yet another op-ed written by chief white house ethics lawyer for george w. bush, for 2 1/2 years, richard painter, a republican serving in a republican administration. this is what he said, "all that is required -- he said, "all that is required is for senate republicans to practice what they preach for so long under bush. give liu an up or down vote rather than a filibuster." well, we're facing a filibuster. i want the american people to know and everyone who is
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supporting goodwin liu and everyone who supports giving young, extremely talented people a chance to prove their meddle, someone who has been a star his whole life, someone who has caught the dream, give this plan a chance. don't filibuster. let us have an up or down vote. and i think the ramifications, and i feel very strongly about this, i don't say this very often on the floor, i think the ramifications that this filibuster are going to be long and difficult for those who caused this good man to be filibustered. unless, of course, we get the votes, the 60 votes we need. and why do i think that? i'm going to tell you why i think that. i'm going to spend the next few minutes talking about goodwin. telling you about his life and
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his achievements and his amazing recognition by so many in his short 40 years. goodwin liu has been extremely successful at each stage of his academic and professional career. he has reached for the stars and he has grabbed them. he was the co-valedictorian and captain of his tennis team in high school. let's start with goodwin in high school. he was born to taiwanese immigrants and they moved to sacramento, and they were quite an influence on goodwin. they used to leave out math problems for him to solve even after he finished his homework. they said to goodwin, you work hard and you can get what you want if you work hard.
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they forgot to mention that there's a filibuster that could interfere, but let's not go there because we certainly hope we get the 60 votes. so it starts in high school where you have a co-valedictorian and captain of the tennis team at rio conico high school and then he goes to stanford where he graduates phi beta kappa, very big honor. while he's at stanford, he's elected co-president of the student body, he wins the university's highest honor to undergraduate education. so high school he's a star. he's a star at stanford. then he goes to oxford university where he was a rode scholar -- rhode scholar which
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is considered one of the most prestigious academic accomplishments. following oxford he decides to attend law school at yale university. once again, goodwin goes to yale and he's a star. he was an editor of the law journal, along with a classmate he won the moot court competition. he wrote an article during his third year of law school that won two awards, one for best paper by a third-year law student and another for the best paper on taxation. he had such a distinguished record in law school that it earned him a clerkship with judge david tattle for the u.s. court of appeals for the district of columbia aiment and then he -- columbia. and then he serves one of the most pres prestigious lawyers aa
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law college, ruth ginsburg. i say, what are you thinking, to my colleagues. we should thank goodwin for continuing his life of public service. we should be praising his decision to put up with all of this confirmation process. instead they've given him a horrible time. an awful time. a miserable time. and i had said yesterday on the floor, i addressed his wife and his kids, you be proud of your dad and you be proud of your husband, but a i say this distribution because i say this, if he doesn't get this, it's about politics. it says more about the people here in this place than it does about goodwin. throughout this period all these attacks on him, all these
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ideological attacks, frankly, on someone they made him become. this is a man with huge support from conservatives, moderates and liberals. he brings people together because of his personality, his kindness, how intelligent he is, how he listens to people. that's what people tell us about him. and, yet, still he's been viciously attacked and we see politics being played and this will not be lost on the american people. i'm going to tell you that right now. because this isn't just some guy that the president bumped into one day and said, i think you'll be good on the court. this is an extraordinary american who has fought so hard in every job he ever had to be the best, to bring the best
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qualities to his work. and that's why he's won the support of former bush officials and kenneth starr, the conservative's idol. they support goodwin, but, oh, it's not good enough for politics that's being played around here and this is not going to go down easy. if -- easy if he doesn't get his up or down vote. this is not going to go down easy. i have experience in this political world for a long time. i won 11 straight elections. they've been all -- not all, most of them very hard. and i know when there's an issue that touches the heart, and i know when there's a person who comes along who deserves better than what goodwin liu is getting from the republicans.
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the republicans here in this chamber. not the republicans outside. let me read to you what kenneth starr said. -- said about this man. let me read it again to you. the traits that should weigh most heavily in the evaluation of an extraordinarily qualified nominee such as goodwin are professional integrity and the ability to discharge faithfully an abiding duty to follow the law. because goodwin possesses those qualities to the highest degree. we are confident he will serve on the court not only fairly and competently, but with great distinction and we support and urge his speedy confirmation. kenneth starr. well, his republican friends,
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kenneth starrs, are not listening. speedy confirmation? and this is an emergency vacancy here. this is an emergency because they need to fill this position. what they are doing by playing politics with this is making sure that the people of this country, because the ninth circuit is very important -- is a very important circuit, will not get justice unless they change their mind and come to their senses and do what they said they would do. i won't quote who said these things, but i have heard many on the other side say, oh, we don't want to filibuster judges. let them get an up or down vote and then we hear they're not going to vote to give goodwin an up or down vote. and what's the reason? there's no reason. you cannot find a more qualified person. what is the message to the
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people in this country when you have someone who was a star in high school, a star in college, a star in law school, a star in everything he did, a law clerk? now, he gave a lot of his life to public service in the corporation for national service where he helped launch the america of public service program. as a senior advisor in the program, he led the agency's efforts to build the americorps program at colleges and universities across this country. between his clerkships, goodwin returned to government service as a special assistant to the deputy secretary of education. he won praise from republicans, from democrats, from conservatives, from liberals, from moderates.
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in every position he ever held until he got to this senate floor. where the conservative republicans turned their back on kenneth starr, turned their back on bush administration lawyers, turned their back on the facts of goodwin liu's life for some agenda, and i am telling you this will not go down easy for them. this will not go down easy. goodwin served in the private sector. he worked for a very well-respected lawferred, o'melveny and meyers. he worked on a wide range of matters, from antitrust to white-collar crime. he also maintained an active pro bono practice, did things for free for people who needed his help. walter dellinger of o'melveny said -- "goodwin was widely
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respected in law practice for his superb legal ability, his sound judgment and his warm collegiality." well, let me tell you, the kind of treatment he's getting here is far from warm. it's cold. it's wrong. it's harsh. i want to read again what kenneth starr said. this is the third time. kenneth starr, can't get more conservative. "the traits that should weigh heavily in the evaluation of an extraordinarily qualified nominee such as goodwin are professional integrity and the ability to discharge faithfully an abiding duty to follow the law. because goodwin possesses those qualities to the highest degree, we are confident that he will serve on the court of appeals not only fairly and competently, but with great distinction. we support and urge his speedy confirmation." kenneth starr. and again, today, in an op-ed
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piece in politico, george w. bush's white house ethics lawyer said all that is required of senate republicans is to practice what they preached. give liu an up-or-down vote rather than a filibuster. but no, we are facing a filibuster against someone who is a star. so as we follow goodwin's career, star in high school, star in college, star in law school. everywhere he goes, he's recognized. in 2003, he joins u.c.-berkeley faculty as a law professor where he has act unseld as a -- where
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he has excelled as a scholar and a teacher. he is considered in this nation one of the leading constitutional and educational law experts, but not in this chamber. what do they want from a nominee backing from conservatives, backing from liberals, backing from the mainstream. his article on education law issues won the education law association's award for distinguished scholarship in 2006. he receives the distinguished teaching award in 2009, the university's most prestigious award. i have never -- and let me say this. i have seen some wonderful people come to this floor for confirmation, democrats, republicans. i have seen qualifications. i have voted for republican judges, for democratic judges. honest to god, it's hard for me to recall someone who at every stage of his life -- and he's only 40 years old -- has been
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able to achieve such excellence. what is the message coming from this body if we don't give this man an up-or-down vote? i'm telling you, it will go down hard. the bar association gave him the highest rating. the highest rating. and yet, we're facing a filibuster here. the goldwater institute, everybody knows barry goldwater, idol of conservatives. the director of the conservative goldwater institute endorsed goodwin liu, but that's not good enough for my republican friends. they said they are endorsing him because of his -- quote -- "fresh, independent thinking and his intellectual honesty." but that's not enough for my
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friends on the other side. they said they were endorsing him also because of his -- quote -- "scholarly credentials and experience to serve with distinction on this important court." so we have heard from kenneth starr, conservatives icon. we have heard from george bush's white house ethics lawyer for two and a half years, richard painter. let's see what else richard painter wrote about goodwin. these supporters of goodwin are passionate. that's why i say this is going to go down hard if we don't get this cloture vote. this is -- this is -- this is interesting. "i've done my share of vetting judicial candidates and i fought the confirmation wars. i didn't know much about liu before his nomination to the ninth circuit, but i became
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intrigued because of the attention the nomination generated, and i wondered if his republican critics were deploying the same tactics democrats used against republican nominees, and they were. if anything, the attacks on liu have been even more unfair, more unfair. based on my own review of his record, i believe it is not a close question that liu is an outstanding nominee whose views fall well within the legal mainstream. that conclusion is shared by leading conservatives who are familiar with liu's record." and that's not good enough for my friends on the other side. well, i'll give them another quote. former republican congressman bob barr, he's also offered praise of professor liu's commitment to the constitution, as barr put it, and to a fair criminal justice system, as he put it. he noted -- quote -- "liu's
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views are shared by many scholars and lawyers and public officials from across the ideological spectrum." but bob barr's opinion isn't good enough for my friends on the other side. i'm even going to read you a quote of a former congressman who -- who tried to get the republican nomination twice and run against me. tom campbell. he and i have had a couple of disagreements. but not on goodwin. tom campbell who served nine years as a republican congressman from california said -- quote -- "goodwin will bring scholarly distinction and a strong reputation for integrity, fair-mindedness and collegiality to the ninth circuit. reflecting on liu's many years of work in serving the public interest, campbell also said i am not surprised that liu has again been called to public service."
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so it goes on and on. i'll give you another republican. brian jones who serves as a general counsel at the department of education from 2001-2005 under george w. bush after liu's tenure there, this is what he said about goodwin. that speaks to the heart and soul of this good human being. -- quote -- "during 2001 and 2002 and even after he became a law professor in 2003, goodwin volunteered his time and expertise on several occasions to help me and my staff sort through legal issues. in those interactions, goodwin's efforts were models of bipartisan cooperation." listen. in all those interactions, goodwin's efforts were models of bipartisan cooperation. he brought youthful knowledge
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and careful lawyerly perspectives that helped our administration achieve its goals. and he says -- quote -- "i am convinced, based on his record and my own experiences with him, that goodwin is thoughtful, fair-minded and well qualified to be an appellate judge." well, all those wonderful letters -- and let me thank everyone who is engaged in this battle from kenneth starr to the goldwater institute and all the conservative -- conservatives that got involved in this campaign on goodwin's side and all the liberals and all the moderates. here is a man whose family came from taiwan. they taught him every value of family. goodwin has a beautiful family. they taught him every value of
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hard work, every value of education, every value of fairness and justice. and why we wouldn't give this man an up-or-down vote, that's all we're asking. no, they bring out the filibuster, and it's going to go down hard if this man does not get this opportunity. so, mr. president, this has been an honor for me to stand here for two days to lay out the strong support that goodwin liu has. not just from the two home state senators, and let's keep that one in mind, senators. when you and your colleague and your state are backing a nominee, just keep in mind don't ever tell us well, that doesn't matter because it should matter. strong support from the two home state senators, strong support across the political spectrum,
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strong support by community organizations. and in closing, let me say this: diversity is important on the bench. why do i say that? because america, we are a melting pot and we're proud of this american dream. but if our court doesn't reflect this diversity, it could still be fair, it could still be just, but not as good as if we have a diversity of thought and ethnic diversity. now, in the ninth circuit -- this is interesting, the ninth circuit covers an area where 40% of asian americans live. 40% of asian americans live within the ninth circuit boundaries, and we do not have an asian american judge. is the asian american community excited about this nomination?
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absolutely. whether they're republicans -- and many of them are -- whether they are democrats -- and many of them are. i think it's about a 50-50 split in the asian community. well, pay attention to this. this is a moment. it should be a moment of great celebration. i'm fearful, i'm fearful it might not be, but i am forever hopeful that it will be if people listen and they see the breadth of support of this man and they take politics out of the equation and ideology out of the equation, they will vote for ending this filibuster and they will vote for goodwin. thank you very much, and i yield the floor. mr. sessions: mr. president? the presiding officer: the senator from alabama is recognized. mr. sessions: mr. president, i
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would like to speak on the liu nomination, and i appreciate the good advocacy of senator boxer, but i would remind her that she and her democratic colleagues changed the ground rules of the senate and created filibusters that had not -- that heretofore had not -- had been done in early 2000, i opposed that, but after much, much debate, several years in which several fabulous nominees to the court were being blocked by a filibuster, the gang of 14 decided that matter and said well, we all agree now we'll not filibuster except in extraordinary circumstances. and i think as a matter of law, not as a matter of character and personality, but as a matter of approach to law, extraordinary circumstances exist in this case. i've heard my colleagues talk about professor liu's unusual intellectual abilities, his
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academic career, clerkship on the supreme court and his prolific writings, and certainly i don't dispute he is a good man and is involved in debate about law in america. what they failed to mention, however, is his lack of any meaningful experience as a practicing attorney. s never tried a case before a jury and argued only once before a federal court of appeals. only once. this is a very serious shortcoming for a number of reasons, the most important of which is the plain fact that significant legal experience litigating in court provides insight to someone who would be a judge and understanding that words have meaning and consequences. and it is a real legal world testing ground in which persons can prove their judgment and their integrity and their skill.
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it's also -- it also provides a maturing experience where one learns that words have reality and that a single word and a deed, a contract, a letter or even an e-mail can determine which party received millions of dollars in a lawsuit or even whether they go to jail or not. seasoned lawyers bring much to the bench as do judges who have previous experience when they go on to the courts of appeal. this lack of legislation experience leaves me with only two sources of how to evaluate how this nominee would behave on the bench. his writings, which are extensive and his testimony before the committee. which, frankly, i never felt too great about the value of those testimonies. from his writings one cannot help but see that mr. liu has
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extraordinary beliefs about our law and constitution. beliefs that fall far outside the mainstream. they just do. professor liu does not believe judges are bound to apply the constitution according to what it actually meant at its drafting or what it plainly says, but he believes judges are free to adapt the constitution according to how they perceive the needs of modern society. in fact, he has written this: -- this -- quote -- "interpreting the constitution requires adaptation of its broad principles to the conditions and challenges faced by successive generations. the question is not how the constitution would have been applied at its founding, but, rather, how it should be applied today in light of changing
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needs, conditions, understandings of our society." this is a -- an untethering of a judge from law, in my opinion. he has also written that the constitution has no fixed meaning. he's written that -- quote -- "our constitution has shown a remarkable capacity to absorb new meanings and new commitments forged from passionate dialogue and debate, vigorous dissent and sometimes disobedience." he goes on to say, fidelity to the constitution requires judges to ask not how its general principles would have been applied in 1789 or in 1868, but, rather, how those principles should be applied today in order
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to preserve their power and meaning in light of concerns, conditions involving norms of our society." to that i would days debris and -- i would disagree and say that words do have meaning. they mean something specific and when they are written down in a statute or a constitution, that meaning does not change by the mere passage of time or the mere shifting of political winds or the judge's personal views about what may be the concerns, conditions, and evolving norms of our society. judges aren't empowered to do that. they're not empowered to impose their views about the concerns, conditions, that involving norms of our society. judges are given the power to decide cases and to say what the law means. for a judge to believe otherwise is a serious threat to the rule
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of law and to the principles that make this nation great. professor liu's writings express extreme views about more than constitutional interpretation. his writings have often expressed an unorthodox view of the role of a judge. alexander hamilton famously wrote in the federalist papers 78, that the judiciary has no influence over either the sword, the purse. no direction either of the strength or of the wealth of the society and can take no active resolution whatsoever. it may truly be said to have neither force nor will merely judgment. and, frankly, having read his writings and listened to his testimony where all his great
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capabilities and fine character are, i have concluded that he, indeed, lacks the most essential quality of a judge, and that's good judgment. proven in the practice of law or as a previously appointed judge. i believe that hamilton he was the role an vision by the chief justice marshall when he wrote it is the province and duty of the justice department to say -- the judicial department to say what the law is. close quote. i think chief justice roberts perfectly summed up the role of a judge as the founders saw it and as we've been raised to understand it when he said that a judge should be a neutral umpire who calls the balls and strikes without preference to either side, but professor liu does not agree with that
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analogy. he attacked chief justice roberts. he does not argue that the task of judges is to read the words of the constitution according to their original meeting. instead he's written that -- quote -- "the historical development and binding character of our constitutional understanding demand more complex explanations than a conventional account of the courts as independent, socially detatched decision makers that say what the law is. then during the -- the enduring task the judiciary is to find a way to articulate constitutional law that the nation can accept as its own." i -- this is utterly wrong. that view cannot be accepted because it calls for a judge to be ponder, to seek, to render a decision that is popular or fits
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the judge's own values. most certainly such a decision method is not law. it's not objective. it's subjective. really, it allows a judge to base rulings on factors that are incapable of being a standard. it introduces politics, ideology, religion and whatever else may be in a judge's mind in a decision-making process. and it's contrary to the entire history of the american rule of law that served us so well. mr. liu has also written that -- quote -- "the problem for courts is to determine at the moment of decision whether or collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal
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doctrine." these words describe a policymaker, not a judge. professor liu's writings also show that he does not share our founding father's view -- vision of in many different areas. and having confused my papers here. i better get this straight. he does not see the constitution as a charter of freedom from government interference. instead, he argues that portions of the constitution create positive rights to welfare benefits. he attempts to derive all of these rights from the citizenship clause of the 14th amendment.
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that clause reads simply this: all persons born or naturalized in the united states and subject to the -- the jurisdiction thereof are citizens of the united states and of the states where in they recite -- wherein they reside. it may be difficult to determine exactly what some of the words mean in the constitution. however, our language has not changed so much that these words could possibly be read to mean that all americans have a right to various benefits, such as -- quote -- " -- and this is what mr. liu has written -- quote -- "expanded health insurance, child care, transportation subsidies." i kid you not. "job training and a robust earned income tax credit."
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close quote. that's what he's written in several important law journals, not a casual conversation. he's written in law journals. he writes that citizenship does not mean citizenship but rather to be a fully, able participating member of society. close quote. the constitution didn't say that. the constitution just made the person citizens. his article says thead indication that child care, transportation subsidies, job training and presumably other welfare benefits you might need are constitutional rights because the citizenship clause ultimately requires equality of results in those context. he asserts that the judge's role is to ensure such a result is achieved even if the legislature may not so find. that's like no definition of citizenship i've ever heard.
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professor liu's interpretation of the citizenship clause is so far disconnected from the actual text of the document and what the people meant when they ratified it that it would be unrecognizable to those who drafted it. some of professor liu's supporters have said, as he did before the committee, that his argument about the citizenship clause was directed only at congress. legislative branch, executive branch. and it was meant for judges. that simply does not square with what he wrote. and we've researched this, tried to be fair to him. in 2008 professor liu published an article entitled "rethinking constitutional welfare rights." constitutional welfare rights. in that article he set out to make, as he said -- quote --"a
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small step toward reformation of thought on how welfare rights may be recognized through constitutional adjudication." that means by judges. judges do adjudication. in that same article professor liu argued once there is a welfare program, it is the role of the courts -- he said the courts to grasp the community meaning and purpose of that welfare benefit in light of the needs of equality and national citizenship. professor liu explicitly stated that, when necessary, courts should recognize or expand these welfare rights by -- quote -- "invalidating statutory eligibility requirements" -- this is his language that he quo -- quote -- "by invalidating statutory eligibility
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requirements" -- that means welfare -- or strengthening against benefits. well, congress withdrew and altered benefits with the welfare reform act in the late 1990's. president clinton eventually signed it and the judge -- does the judge think that the courts ought to strike that down? apparently so. in other words, professor liu believes that judges have right, and, indeed, the duty to rewrite laws written by congress when they think those laws are inadequate or when the judge, without the judicial limitations of legal standards, decides this case on what the judge thinks is fair. it's too close to that. it really is. this is a dangerous nonlegal philosophy. his writings also show that he holds a number


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